[Eugene Volokh, 7:21 PM]
ODD CRITICISM: I noticed today that I've been getting quite a few hits via the following link on the Eschaton blog:

I'm no smart young law professor, but I'm shocked at the degree to which the ability to find some legal justification for constitutional rights by executive whim is enough for some people.

(I assume that the author meant "denial of constitutional rights.") This points to my "Why Military Custody?" post on the trouble with applying the standard civilian interrogation rules to enemy combatants.

     Now I surely don't want to look a gift link in the mouth, and I'm delighted that the author found my post worth criticizing. But I'm puzzled as to the substance of the criticism. What exactly is shocking about my argument? Is the argument against extra government power to fight extraordinary threats so obvious -- and so obviously correct -- that it doesn't need explanation? (Also, is it so obvious that the government's action really is, as a legal matter, a denial of constitutional rights? It seems to me that this turns out to be a very complicated, and to my knowledge still unresolved, legal question.)

 
[Eugene Volokh, 6:43 PM]
GEIGER COUNTERS, DIRTY BOMBS, AND THE FOURTH AMENDMENT: I should have a piece on these subjects in Slate on Monday, if all goes well. No blogging over the weekend, at least from me.

 
[Eugene Volokh, 2:25 PM]
POTENTIAL SLEEPER SUPREME COURT CASE? Say the government interrogates someone in violation of Miranda, or the Sixth Amendment rule against interrogating someone who has been arraigned and asked for a lawyer at the arraignment, or the Fifth Amendment right not to be subject to coercive interrogation. (Let's set aside for now the case of plain physical torture, which might be somewhat different.)

     It's clear that a confession gotten this way is inadmissible at the subject's trial; the same is true even of evidence that is gathered indirectly as a result of the suspect's confession. But does the actual getting of the confession itself violate the Constitution? Are these rights only rights not to be convicted based on evidence gathered in certain ways, or rights to be free of these evidence-gathering methods in the first place? Are they rights that focus only on the fairness (beyond merely the truth-finding aspect) of the trial process, or are they rights that focus on the propriety of police questioning as such?

     This, it turns out, is very important. It's one thing to say "If you question the guy this way, you might not be able to use the results to convict him" -- it's another to say "You can't question the guy this way at all, and if you do you're acting unconstitutionally." (Perhaps either legal rule is just wrong where terrorism is concerned, but they are different.)

     My blog post below assumed that the Constitution indeed prohibited even the gathering of the evidence in certain ways, not just its use -- and there certainly is language in the Supreme Court cases and in lower court cases that takes this view. But fellow law professor Richard McAdams pointed out that this isn't necessarily so, and some language in the Supreme Court cases and in lower court cases supports that view, too. So maybe the government would have been free to interrogate Padilla even after he claimed his Miranda rights, so long as it was willing not to use that evidence at Padilla's trial.

     Here's where the Supreme Court may step in. With little fanfare, two weeks ago (June 3), the Supreme Court agreed to rehear Chavez v. Martinez, where one of the questions presented is "Does violation of [the Fifth] Amendment, potentially resulting in an award of civil damages, occur at the time of the purported coercive interview or only when and if the state introduces the constitutionally violative statement in a criminal proceeding?" Another law professor, Eric Freedman, mentioning this case to me, for which I thank him very much. I had completely missed it, because at the time it seemed like such a technical point.

     But now I realize that this could be a tremendously important question. Let's set aside the damages issue as such for now, since the broader question, in the Padilla case and others, isn't basically about the damages -- it's about what the government may constitutionally do, in a culture where legality and constitutionality are seen as tremendously important.

     Rather, the question is: May the government lawfully use certainly potentially coercive methods (but again ones that stop short of physical torture, which is a separate, though important, question) in the civilian justice process, so long as it's willing not to use the results in the questioned person's trial? Or is even the questioning itself unconstitutional?

     If the answer is the latter, then it looks like Miranda and the other rules could be very substantial barriers to using the civil justice system to deal with terrorism -- and military detention thus becomes a comparatively more powerful tool. If the answer is the former, then the marginal drawbacks of the civil justice system, and the marginal advantage of the military system, decrease.

     Of course, even if the government is only barred from using the evidence in the subject's own trial, this may still be quite troubling. It's one thing to say "Well, it's true that this [burglar or robber, or even rapist or murderer] will have to go free even though he's clearly guilty, but that's what we need to do to give the police an incentive to behave properly"; it maybe another to say with respect to an enemy saboteur who may have special skills, willpower, and connections that might allow him to fight against us again. But at least this consequence is less troubling than a conclusion that the government was simply barred from interrogating the enemy in various ways in the first place.

 
[Eugene Volokh, 1:46 PM]
WORLD CUP: There's very amusing Time essay this week on the World Cup. Here's the opening paragraph:

There are just two things about the World Cup that prevent Americans from caring: it involves soccer and the rest of the world. We could get over the soccer part eventually -- after all, it's kind of like the soccer we make our suburban children play, only without the goal scoring. But the global part just isn't going to happen. When I hear that Tunisia is playing Belgium for the crucial Group H runner-up spot, all I want is a map. The only way Americans are going to learn another country's name is if it attacks us.

 
[Eugene Volokh, 8:42 AM]
WHY MILITARY CUSTODY? As I've mentioned before, I'm troubled by the prospect of military detention and military trial (though the latter, under the current Executive Order, applies only to noncitizens). At the same time, I'm sure that military detention and military trial are sometimes proper. For instance, it's always been understood, and in my view quite correctly, that if the military catches someone who's a soldier in an enemy force, it can detain them as POWs.

     The tough question is where to draw the line. Part of the inquiry into this might be historical, though history is somewhat ambiguous here. Another part might be conceptual line-drawing, though I haven't yet heard a persuasive case on that score.

     Another part, then, has to be pragmatic -- what are the specific risks of letting the military as opposed to civilian justice do certain things, and what are the specific benefits? This must be a comparative question, focused on the ways in which military handling is better or worse than civilian. Both are flawed in many respects, but the question is which is less flawed.

     MIRANDA AND INTERROGATION. So let me focus on one pragmatic question: interrogation. Our civilian justice system has taken the view that the police should be carefully circumscribed in their ability to question suspects.

     They cannot question a suspect, while the suspect is in custody, without reading the suspect his Miranda rights. Beyond that, once the suspect says that he doesn't want to talk any more, or says that he wants to talk to a lawyer, questioning must stop until the suspect brings up the matter again. (This is one of the Miranda rights that the government must respect.)

     The Court has also held that once a defendant is arraigned before a judge and asserts his right to counsel there, the government may not start questioning the defendant even if the defendant then waives his right to counsel. (This isn't technically a Miranda matter, but I'll group it with the Miranda rights for now.) I'm not sure that these are good rules, but there are certainly good arguments in their favor, at least in normal law enforcement.

     But as I understand it, military interrogations are not so limited -- nor would we want them to be. You can't torture POWs, but you can question, cajole, wheedle, threaten, perhaps setting aside threats of unlawful violence, and the like. (I include under POWs unlawful combatants, such as spies and saboteurs: They aren't entitled to all the benefits of POW status, but they are surely at least as subject to interrogation as POWs are.)

     To my knowledge, such methods may often work, even without torture. I also suspect that they at least sometimes work better than the carefully circumscribed civilian interrogations. I know that police departments can often get a lot of information out of people even given the Miranda constraints; but I doubt that they can get as much as they could without those constraints (again, even if physical abuse is prohibited). (I should mention, as before, that all this thinking is quite tentative on my part, partly because this is a tough question, and partly because I'm not as expert on the military side as I am on the civilian justice side.)

     So here, then, is one question: If our civilian justice system continues to strongly circumscribe interrogation of prisoners, wouldn't that cut in favor of having Padilla and others like him be detained and interrogated as POWs by the military? Don't we want the government to be able to do what it can -- again, setting aside torture, which is generally forbidden both in the military and the civilian context -- to get as much information as it can out of him?

     Maybe the costs of military detention are so great that they outweigh this benefit. They would be particularly great if such detention could be used against anyone who's suspected of having any knowledge of terrorist activity, as opposed to people who the government has strong reason to believe are actually enemy soldiers. But at least here, I think, we have a potential concrete benefit of using the military detention and interrogation system rather than the civilian one.

     QUARLES AND THE PUBLIC SAFETY EXCEPTION: Now it might be that the civilian justice system isn't as rigid as I describe it. In New York v. Quarles (1984), the Court held that there was a "public safety" exception to Miranda: A police officer arrested a suspect; the officer had been told that the suspect had a gun; when arrested, the suspect had an empty holster; and before reading the suspect his Miranda rights, the officer asked where the gun was.

     The Court concluded that this question didn't violate Miranda, because (and here's the broadest possible language from the Court) "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for" the Miranda rule. ("So long as the gun was concealed somewhere in the supermarket . . . it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.")

     Sounds pretty broad, and possibly applicable to supposed would-be dirty bombers, or for that matter any suspected terrorists, given the clear "threat to the public safety" from terrorism. But on the other hand, much of the rest of the opinion turns on the split-second nature of the police officer's questioning, which requires "spontaneity rather than adherence to a police manual," and involves "immediate necessity" and "exigency" (which in criminal procedure generally means the risk of truly immediate harm). And indeed, to my knowledge Quarles has not generally been read very broadly.

     In any event, maybe the criminal justice system could just relax, whether under a Quarles rationale or otherwise, the Miranda constraints on questioning prisoners where weapons of mass destruction are supposedly involved. That would eliminate this part of the advantage that military detention might have over traditional civilian pretrial detention. But for now, it looks like Miranda might well be a serious barrier to effectively questioning alleged enemy saboteurs.

     UPDATE: It turns out that the matter is made even more complex by a recently granted, but relatively unnoticed Supreme Court case.

 
[Eugene Volokh, 7:26 AM]
TORTURE: On a discussion list that I'm on, talk has turned to the perennial subject of whether torture can ever be constitutionally justified, even when we're talking about torturing a suspect to find a hidden nuclear bomb, or smallpox vial, or dirty bomb.

     I should say that there are many powerful criticisms of torture that can be made; but too often I hear arguments that simply run more or less as follows: "If we start using torture, we lose any possible claim to the moral high ground." "Once we start using torture, are we any better than al Qaeda?" "When fighting monsters, we must never become monsters ourselves."

     It seems to me that this sort of argument is ultimately deeply unpersuasive, because it relies too much on moral abstractions that sound appealing but simply do not confront the powerful realist counterarguments. Moral high grounds, for instance, are well and good, and all else being equal of course we'd like to have them. But lots of very sensible and decent people argue that sometimes we need to sacrifice the moral high ground in order to, well, save the lives of thousands of people (or more) -- and also that a moral high ground that strips us of the power to save these lives isn't so moral after all. Simple appeals to "keeping the moral high ground" just don't effectively respond to this important argument.

     Likewise, the argument that "Once we start using torture, are we any better than al Qaeda?" strikes me as fundamentally misplaced. You bet we'd be better than al Qaeda; while means are important, ends are important, too. Using torture to save the lives of innocents, even if it's morally flawed, is surely better than killing thousands of innocents in order to install a supposedly purer Islam in the Middle East.

     Again, maybe torture is just categorically wrong, and maybe this means is impermissible regardless of the ends -- I'm not sure about that, but one can credibly argue that. But whatever the right or wrong of the matter may be, it can't be decided simply by claiming that ends are irrelevant and that means are all that matter.

     As I said, there are powerful arguments against torture, for instance the risk that allowing torture in the most extaordinary cases will lead to allowing it in the merely extraordinary cases and then in fairly ordinary cases. I remember one conversation where someone said that of course torture is justified when it's needed to save thousands of lives -- and then went went on to praise the example of the Jordanian security apparatus supposedly effectively using torture in order to thwart a plot on the King of Jordan's life.

     A perfect example of the slippery slope, it seems to me, and all in the course of one conversation. Once torture is legitimized in principle to save thousands, it becomes much easier to urge it to save one important person, and then of course we must be able to use it to save one ordinary person, and then how about using it to break child pornography rings or catch rapists.

     Is this slippery slope risk, coupled with our natural moral abhorrence to torture in any situation, enough to justify refraining from torture in all cases, even where thousands of lives really are at stake? This is a hard question that reasonable people can and should debate. But it seems to me that abstract arguments about moral high grounds or stooping to the enemy's level do more to weaken the argument against torture than to strengthen it.

 
[Eugene Volokh, 1:14 PM]
MORE ON BLOG ITEMS BEING PICKED UP IN THE TRADITIONAL MEDIA: People at KTSA (550 AM) in San Antonio read some of the material on this blog about the dirty bomber case, and invited me to talk about this on their "Into the Night with Jack Riccardi" tonight, from 7:15 to 7:30 PM Central Time.

     As I mentioned before, I've been finding that quite a few of the blog posts here have turned into traditional media items -- further evidence of how powerful Internet media can be (despite their nominally quite low readerships), and of how their power often flows from their symbiosis with the old media.

 
[Eugene Volokh, 1:04 PM]
BIG DAY: Today is the 27th anniversary of our family's departure from the late, unlamented Soviet Union. Friday the 13th it was, but it was very lucky for us. A holiday far more important than a birthday or New Year's -- our own personal July 4th.

 
[Eugene Volokh, 11:47 AM]
"FROM OVAL OFFICE, DEMOCRATIC ADS -- Vulnerable Lawmakers Seeing Reelection Use Bush's Image":

Democratic lawmakers facing difficult reelection campaigns this fall are employing the services of an unlikely pitchman: President Bush.

The Democratic Party has used ads featuring the Republican president's name and voice to support the candidacy of liberal Sen. Tom Harkin (D-Iowa). In Montana, Democratic Sen. Max Baucus has paid for a series of television and radio ads invoking Bush and using his voice. And in North Dakota, Democratic Rep. Earl Pomeroy is running a TV commercial featuring a photo of him standing with Bush in the Oval Office.

The president's huge popularity, particularly in the South and Rocky Mountain states, has led a number of vulnerable Democrats to run ads promoting their close ties to the president -- even though Bush, in all cases, is backing their GOP opponents. . . .

 
[Eugene Volokh, 10:01 AM]
THE GLORIES OF THE ACADEMIC LIFE -- well, once upon a time: A colleague tells me that Robert Darnton, in The Great Cat Massacre and Other Episodes in French Cultural History, says this about a contemporary description of a procession in 18th Century France:

Professors had a great deal. . . . [T]he Professeurs Royaux of the University of Montpellier wore crimson satin with ermine hoods. In the law faculty they were known as Chevaliers es-Lois, a title that gave them nontransmissible nobility and the right to be buried in an open coffin wearing their robes and boots with gold spurs.

To be sure, they received only 1,800 livres a year . . ., an income that our author though incompatible with the 'nobility' of their 'estate.' But 'dignity' or 'quality' . . . did not derive from wealth. Professors were knights of the law because of the noble character of their knowledge, and it was more important to go to the grave with golden spurs than to leave a fortune behind.

 
[Eugene Volokh, 9:21 AM]
MARIN AND MARRIAGE: Lindh was driven to Islam by Marin County; but Padilla, the N.Y. Times (June 11) says "converted to Islam when he married a Middle Eastern woman." Both Marin life and marriage, it is now obvious, are deeply subversive institutions . . . .

 
[Eugene Volokh, 9:08 AM]
DECLARATION OF WAR: I've argued below that both U.S. and international law recognizes that we can be in a war, with all that that entails, without a declaration of war. I've also suggested that even if a declaration of war were somehow required for certain actions -- which I don't believe is the case -- it's hard to see why the Congressional authorization of the use of military force shouldn't qualify, at least unless the magic words "We declare war" are required.

     Reader Michael McNeil points out that Senator Biden, who drafted the use of force resolution, agrees on this:

M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.

 
[Eugene Volokh, 6:59 PM]
MICHELLE BOARDMAN'S PAGE: Just put up a little Web page for co-blogger Michelle Boardman, complete with brief bio, e-mail address, and a photo. There's a permanent link on the left-hand side of this page.

 
[Eugene Volokh, 6:55 PM]
LAWSUITS AGAINST GUN MANUFACTURERS: Howard Bashman's "How Appealing" mentions the Ohio Supreme Court's allowance of Cincinnati's lawsuit against gun manufacturers -- a break from the overwhelming trend of recent cases, which have generally rejected these sorts of lawsuits, both by cities and by private crime victims, against gun manufacturers. I haven't read the case yet, but hope to mention some things about it later. (Thanks also to Kevin Holtsberry for first alerting me to this.)

     But in the meantime, one observation: The Ohio Constitution has a right to bear arms provision that the Ohio courts have recognized secures an individual right -- "The people have the right to bear arms for their defense and security." The courts have correctly held (for instance, in the famous New York Times v. Sullivan) that free speech and free press constitutional provisions limit courts' power to allow potentially ruinous tort lawsuits against publishers for what they say. Some such lawsuits are still permitted, but courts recognize that these suits, even when aimed at misconduct (such as false statements), can have a chilling effect on the proper exercise of constitutional rights; and that courts must therefore limit these lawsuits to diminish this chilling effect.

     As David Kopel and Richard Gardiner have pointed out, the same must apply to other constitutional rights, such as the right to bear arms. Kopel & Gardiner made this point about the Second Amendment, but surely it's equally true for state constitutions, such as Ohio's, that clearly secure an individual right.

     So I wonder: Did the Ohio Supreme Court take seriously its obligation to protect the people's right to bear arms while defining the boundaries of state tort law? (After all, constraining manufacturers may often mean constraining their customers.) Or did it treat the right to bear arms as a second-class right, denying it the protection against chilling effects that is provided for free speech and free press rights? Ater I actually read the opinions, I hope to have an answer . . . .

 
[Eugene Volokh, 6:21 PM]
CAESAR BLOGGING: Check out Bloggus Caesari, an odd but very interesting project (I confess that I'm a sucker for anything Ancient Rome, though I generally go for historical novels than, er, any actual history). Thanks to Iain Murray for the link.

 
[Eugene Volokh, 6:08 PM]
POW'S AND TREASON: Some people have supported the military detention of alleged enemy agents like Padilla on the grounds that they're like POWs. After all, they reason, if an enemy soldier captured on the field of battle can be held until the end of the war as a POW, then it follows that an enemy agent sent as a saboteur into the U.S. may likewise be detained -- except that, because he's an unlawful combatant who engages in sabotage or espionage secretly (out of uniform), he needn't be given the various privileges offered normal POWs. More broadly, anyone who is making war on the U.S. can be detained until the end of the war, whether he's a citizen or not, whether he's captured overseas or here, and whether he's making war openly and actively or surreptitiously as a long-term saboteur.

     I think this is a powerful analogy. On the other hand, if it's accepted, then it will give the government truly tremendous power to detain in military custody -- and possibly try by military tribunal, especially if the Presidential regulations are changed to authorize the trial of citizens, as was the case in the Ex parte Quirin (1942) case that validated such tribunals -- anyone who they say is an "enemy soldier" working for the terrorists. Specifically, to quote (with permission) a post by Prof. Richard McAdams (U. Illinois) from a law professors' discussion list,

[W]hat does this do to the law of treason? It would seem to me that most of the time there is a treason, it is possible to say that, in some loose pragmatic sense, the U.S. is in a "war" and the citizen we suspect of treason is therefore an "enemy combatant." [In fact, the Treason Clause of the Constitution says that treason may only mean "levying War against [the United States], or in adhering to their enemies, giving them aid and comfort" -- E.V.] If that means we can hold any such citizen indefinitely without any criminal process, what point is there to the constitutional requirements of proving treason? I suppose it makes it harder to execute those who are possibly guilty of treason. But are we prepared to say the government is free to incarcerate its citizens indefinitely without legal process based on mere suspicion of treason?

I think this is a powerful argument, and a reminder that under the Constitution, even pressing military necessity -- perhaps even the fear of weapons of mass destruction -- is not a universal solvent of all protections.

     So what do we do about the POW analogy, and about Ex parte Quirin? How do we fit that with Prof. McAdams' argument, and the fact that in American history, treason -- even in the sense of helping enemy saboteurs -- was tried by civil courts (see the discussion of Haupt v. United States and Cramer v. United States in paragraph 7 of this post? I can't say I have a good answer, which is why I keep stressing that my views on all this are tentative.

     But I do think that all this shows the limitations of focusing on one analogy -- or one direction in which a slope is slippery -- and thinking that this settles the matter. There are, unfortunately, analogies and slippery slopes going both ways.

 
[Eugene Volokh, 4:00 PM]
DECLARATION OF WAR AND A NATIONAL DEBATE: I''ve argued below that the government's war powers -- including the ability to detain prisoners, and perhaps to try them using military tribunals -- do not require a declaration of war. Bboth U.S. law and international law generally focuses on the existence of a war, not on whether it has been declared.

     But, some argue, wouldn't requiring a declaration of war still be a helpful step, since it would stimulate Congressional and public debate, and require people to really confront the fact that war gives the government lots of powers, perhaps indefinitely (since this war may well last indefinitely)? Maybe the law therefore should require an official declaration of war.

     I don't think this argument really works. First, even if such a requirement really were imposed, what do we have today? Congress has authorized the use of military force. There has been a military attack by a foreign enemy on Americans in America. There is therefore actual war, coupled with Congressional recognition of hostilities -- only the words "declaration of war" weren't used. I don't quite see why the presence or absence of these magic works should make that much of a difference.

     But more importantly, even a requirement of an official declaration of war, in exactly those words, wouldn't really have stimulated much debate on war powers after 9/11. Such debates almost never happen -- in Congress, in the media, and among the public, as opposed to just among law professors -- in the abstract. And if they do happen in the abstract, they aren't terribly productive.

     If on 9/12 Congress had debated whether to declare war, people would have had little idea of just what war measures the government would have to undertake, and in what circumstances they'd be applied. If given the question "Declare war and give the government flexibility, or don't declare it and deny the government this flexibility?," Congress would have, I'd wager, quickly declared war, with little debate about the then purely hypothetical details, no matter how important these details would ultimately prove to be.

     The debate that we are having now, when the particular measures are being proposed and particular cases are coming up, is actually much better. It's far from perfect, but obviously many people -- editorial boards at major newspapers, pundits, Congressmen on both sides of the aisle -- are willing to engage in it, as we saw when the military tribunals were first proposed, and as we now see when particular cases of military detention are arising. We might prefer that there be more such debate, or a different outcome of this debate. But we wouldn't have gotten anything equally good, I think, if the debate had to happen in the abstract when the country had to decide whether to go to war, and didn't have any specific proposals and controversies on the table.

     We should certainly think hard about what the proper type and level of protection against government excesses should be -- and we should think hard about how this protection should be balanced against the need to make sure that the government has the power to protect us. But I don't think that we'd get much protection out of creating rules under which government power turns on whether war is declared.

 
[Eugene Volokh, 3:32 PM]
ATTILA: Talking to a friend today, I was reminded of a line about why Americans have had a different -- perhaps more naive -- view of the world's dangers than Europeans and others: "Who ever heard of Attila the Eskimo"? Yup, two oceans have served us well for a long time; but not any more. Somehow, I'm not sure that even the Cold War and the threat of nuclear destruction were enough to fundamentally change our understanding, but I think that 9/11 might have.

     We're now in the age of Attila the Eskimo, or rather Attila the Jet-Setting Hun (and his stupid nephew, Attila the Shoe-Bomber). We can beat him, but only if we really, deeply accept his existence, and the need to fight him for our lives.

 
[Eugene Volokh, 9:28 AM]
E-MAILING MICHELLE AND JUAN: Their addresses are now posted on the left-hand side of the page; when I put together short Web pages for them, I'll replace them with a Web page link, as I have now for Sasha and me. When e-mailing a response to a message, please look closely at who is listed as the message author.

 
[Eugene Volokh, 7:20 AM]
PROSECUTION FOR POSTING A STORY ON THE WEB: According to The Times Union (Albany),

A Shenendehowa senior faces up to a year in jail for allegedly depicting fellow students and at least one teacher engaged in sexual activities in a pornographic story posted on an Internet site, investigators and prosecutors said Wednesday.

     Vincent Fuschino . . . was charged last month with second-degree aggravated harassment, a misdemeanor, after an underage female at Shenendehowa High School filed a complaint with the State Police. She allegedly identified herself as a character in the 40-page story.

     "It was a story written on the Internet. It was explicit with sexual innuendo," Senior Investigator Curt Lohrey the State Police at Clifton Park said. "There was sufficient evidence for us to identify a complainant and to charge aggravated harassment." . . .

     Lohrey said that Fuschino was charged because the characters in the story could easily be identified as specific students based on physical descriptions, their enrollment in certain classes or participation in school activities.

     "There was enough information in it. That's why charges are involved," Lohrey said.

     If the characters weren't so recognizable, Lohrey said, "we wouldn't have much of a case."

     District Attorney James A. Murphy III said that a Court of Appeals case backs the decision to prosecute the Fuschino case due to the public descriptions violating the privacy rights of the complainant.

     "It's fairly heavy and explicit in certain descriptions," Murphy said regarding the story.

     The Web site on which the story was posted has disclaimers about the sexual nature of the material found there. Many stories deal with mind control in which characters are forced to perform sexual acts. The stories sometimes give graphic detail. . . .

     Look, what this guy did sounds really scummy, and I think the school should have every right to suspend or expel him, since under Tinker v. Des Moines Indep. School Dist. (1969) the school's disciplinary authority over its students is greater than the government's power, acting as sovereign, to control what all of us do.

     But to be sent to jail, even for a rude and embarrassing item like this one? There's no evidence that the item fell within any exception to First Amendment exception, such as the ones for libel, threats, or obscenity (see Miller v. California (1973)). And there's no "aggravated harassment" exception to the First Amendment.

     Nor should there be. "Harassment" is a mushy, ill-defined term. I've long criticized the "hostile environment harassment" theory, which I think poses serious First Amendment problems -- and this sort of "harassment" theory, though different from the hostile environment one, seems just as vague and broad. According to New York law, Penal Code sec. 240.30, "Aggravated harassment in the second degree" is defined (in relevant part) as:

A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Either

(a) communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm . . . .

The theory, I suppose, is that posting this material on a Web site "causes a communication to be initiated" with annoyed or alarmed people (remember, this was a Web site posting, not a direct one-to-one e-mail), simply because the subjects of the message are likely to eventually see the material on that site -- and therefore whenever we post on the Web something that a jury will find was "intended to harass, annoy, . . . or alarm" someone, and was likely to do so, we could be prosecuted for it. Think of how much speech can be criminalized under such a broad rubric.

     I actually predicted in 1996 (Freedom of Speech in Cyberspace from the Listener's Perspective, 1996 University of Chicago Legal Forum 377, part II.C) that this sort of "harassment" law might have this effect. I am not happy to be proven right.

     Incidentally, the imprisonment of Paul Trummel for putting up a Web site containing criticism of retirement home administrators and staffers with whom he'd been feuding, together with their addresses, phone numbers, and one photograph, is also being justified on "harassment" grounds. Can it really be that "annoying" speech about people can be criminalized that easily?

 
[Eugene Volokh, 1:47 PM]
IAIN MURRAY ON DIRTY BOMBS: Iain Murray, who knows much more about science than I do, has a very interesting article on dirty bombs in TechCentralStation.com today.

 
[Eugene Volokh, 1:42 PM]
WAR . . .: Another e-mail today reminds me that there is still a lot of sentiment that we can't really be at war, legally speaking, because there's been no declaration of war. As I mentioned last Wednesday, though, it seems to me that is a fallacy.

     International law, domestic law, and common linguistic usage have all long recognized that a nation can be at war without a declaration of war. The law and usage both focus on what is in fact happening, and not just on whether certain magic words have been used. The U.S. was at war during the Civil War, during the Korean War, and during the Vietnam War, though to my knowledge there were no declarations of war then. There is simply no legal or linguistic rule that says the contrary.

     I've heard lots of good arguments as to why it would have been better had we officially declared war -- that may in fact be so. But even without this declaration, we were certainly at war after 9/11, and I'd say that we're at war now, too, though in a calm phase of the war. This isn't hyperbole, or metaphor, but fact, and both law and usage recognize this fact.

. . . WITHOUT END: At the same time, we should recognize that, unlike with other wars, it may be very hard to tell when it's over. In World War II, when Germany and Japan surrendered in 1945, we knew that the war was over, and that we could return to a basically peace-time footing (of course, until the next war). But now, when will we know that al-Qaeda is defeated, much less that all the other terrorist groups that may want to attack us are defeated? Even if 5 years pass without any terrorist attacks, how could we know that the threat of dirty bomb / nuclear bomb / plague weapon / chemical weapon threat is over, or even substantially reduced in magnitude?

     Obviously, this can't stop us from doing what we need to do to defend ourselves. But we can't take comfort from claims that various measures are only temporary, war-time measures that will be lifted when the war is over. This war may never be over, in any traditional sense -- or at least it may not be over until the world has gotten to be a much safer and America-friendly place than it is now.

 
[Eugene Volokh, 1:28 PM]
RULES OF THUMB: Prof. Robert Lipkin wrote the following on a lawprofs' discussion list (and kindly gave me permission to quote it):

It is probably an axiom of prudence that when faced with imminent evil or destruction, preventing it, if possible, is a priority, despite adverse future consequences.  But it is probably an empirical truth that the more readily we appeal to this axiom, the more likely we are to use it when upon reflection no reason exists for using it. This empirical truth (if it is true) suggests a second prudential axiom (and probably a moral imperative as well), namely, appeal to the first axiom only as a last resort.

     I doubt that I'd always agree with Prof. Lipkin on how this is to be applied, and he and I both agree that this rule of thumb is necessarily quite vague -- but I think there's a lot of truth to it.

 
[Eugene Volokh, 1:25 PM]
MILITARY DETAINEES AND CITIZENSHIP: An anonymous but extremely knowledgeable correspondent points to a case that I read a few days ago, but neglected to mention in my post:

On the points made about the detention of the dirty bomber, I think this case is instructive: In re Territo, 156 F 2d 142 (9th Cir 1946), [which holds] that a citizen who is an enemy belligerent [there, a prisoner of war] can be held without trial for the duration of the war. The only question is whether the Executive's determination of belligerent status is subject to habeas [corpus] review. I believe that it is, and should be, and I predict that the dirty bomber will seek habeas, and that the Executive will present its evidence, and that the federal courts will determine that he is in fact an enemy belligerent subject to detention without trial.

 
[Eugene Volokh, 1:02 PM]
"THE CONSTITUTIONAL VALIDITY OF MILITARY COMMISSIONS": For those who are interested in the constitutional and statuory justifications for the President's military tribunal order, check out "The Constitutional Validity of Military Commissions,", written by law professors Curtis Bradley and Jack Goldsmith. I am not a great expert on the subject, but they are; and I've read the piece and found it to be quite persuasive.

     When you follow the link, click on "Click Here to Download Document"; or, if you want to first read the abstract, just go to the start of the Web page.

 
[Eugene Volokh, 12:46 PM]
STRIPPING CITIZENSHIP: Reader Dean de Freitas asks:

If it could be determined, as part of the legal process, that Jose Padilla was in fact an enemy combatant, could he be stripped of his citizenship and then be subject to a military tribunal without changing the current rules? Perhaps this would offer an additional level of protection to prevent abuse of the tribunal system.

     As it happens, I dealt with the legal rules related to stripping people of citizenship in my Dec. 17, 2001 Slate Explainer focused on John Walker Lindh. The rules should be the same here, though there might be some differences in application.

 
[Eugene Volokh, 11:12 AM]
HIGHLY TENTATIVE THOUGHTS ABOUT THE DIRTY BOMBER AND MILITARY JURISDICTION: Here are some highly tentative thoughts about the dirty bomber and military jurisdiction -- I hope to learn more about this in days to come, and may well change my mind on some or all of these:

1. Under Ex parte Quirin (1942), enemy saboteurs and spies can be tried by military tribunals, whether or not they are citizens, for violation of the laws of war. Quirin makes a persuasive case that this has long been seen as an exception to various Bill of Rights protections, and that the Framers would not have understood the Bill of Rights as applying to such military crimes.



2. At the same time, it's easy to see the risk of military tribunals, which may operate in secret and dispense with all sorts of other protections, trying people for "sabotage" and "espionage." Such tribunals would be potentially particularly powerful tools for suppressing legitimate domestic dissent. World history is full of military law and military justifications being used for this purpose; we cannot casually ignore this risk. The same is true in some measure of military detentions, which can be open-ended in a way that civilian ones can't: POWs, for instance, can generally be detained without trial until the end of the war, and I assume that alleged unlawful combatants like saboteurs and spies can be as well (and for longer if they were tried and convicted of violations of the laws of war). (Thanks to Aeon Skoble for helping me clarify the last sentence.)



3. This is why it's good that the President's executive order limited military tribunals to noncitizens: Not because noncitizens somehow don't deserve the same criminal justice protections that citizens do (the Court has since at least the late 1800s held that the Bill of Rights applies to noncitizens, and while they can be kicked out of the country, while they're in our hands we should treat them fairly), but because the limitation diminishes the chance that military tribunals would be used for suppressing domestic dissent. Most domestic dissent movements will involve at least many citizens, and likely a majority; tribunals, as defined by the executive order, will thus not be very useful against such movements.



4. While military tribunals may pose unusually high dangers -- in the long-term, not (in my view) now -- of suppressing domestic dissent, military detention may pose such dangers, too, even if it's followed by eventual civilian trial.



5. On the other hand, we can't let even a real risk of the slippery slope down to bad results in the future cripple our ability to protect ourselves against dirty bombs, nuclear bombs, smallpox plagues, and all the other horrors that the enemy may unleash on us. And the sad fact is that our criminal justice system may not be an effective way to deal with saboteurs who are agents of an enemy force such as al-Qaeda. The evidence against these people may often need to be kept secret, and though there are some procedures for using secret evidence in civilian courts, they are understandably quite limited. Also, there's a very real risk that the jurors and judges in these cases will be subject to retaliation; unless I'm mistaken, the judge in one recent terrorism trial is still under 24-hour-a-day protection, because of threats to his life. Military trial, or at least military detention, may often be a necessary tool in fighting the war.



6. What's more, the risk of the slippery slope is serious, but American history cuts against it, at least as to military tribunals and military detention. As someone pointed out to me, less than ten years after Ex parte Quirin, we were not just in a Cold War but in a hot one (the Korean War), and had serious concerns about domestic spies and saboteurs who were working for the enemy. But even though there were some excesses (relatively mild by world standards) in our attempt to root out these spies and saboteurs, there was no resort to military justice. Even during the McCarthy Era, American traditions were robust enough to resist any slippage to greater use of military justice against civilians.



7. A possibly relevant, though possibility not relevant, fact: While the saboteurs in Quirin were tried by military courts, those who allegedly helped them -- who were not in any meaningful sense enemy soldiers, and were perhaps not in on the plan in the first place, but who allegedly ended up knowingly assisting the saboteurs -- were tried by civilian courts; see Haupt v. United States and Cramer v. United States. (Cramer's treason conviction was in fact reversed.)
   
   Might this point to a sensible distinction between people accused of being actual enemy soldiers, and those who were supposedly only helping them, incidentally to their daily lives? At first, the distinction may seem silly -- we usually treat aiders and abettors as pretty much equally culpable as the actual actors -- but I wonder whether there might be some merit in it: Accusations that someone conspired with or aided an enemy soldier are generally much easier to make, and thus more likely to lead to slippery slope effects in troubled times, than accusations that someone was in fact a member of al-Qaeda or some such group. I am particularly tentative about this thought, but the historical point about the distinction between the Quirin defendants and the Haupt and Cramer defendants struck me as worth mentioning, and possibly worth building on.



8. One important question to which I haven't seen the answer: Will there be some civilian court screening of whether there's indeed very strong evidence to think that a detainee really is an enemy combatant, and thus properly subject to military detention and perhaps (if he's a noncitizen, or if he's a citizen and the rules are changed) military trial? It's one thing to say "enemy soldiers must be subject to military law" -- but quite another to say "people, including U.S. citizens, who are believed by the military to be enemy soldiers must be subject to military law," especially when we leave the easy case of soldiers captured on the field of battle.

In any case, just some loosely connected and highly tentative thoughts. I much look forward, as I said, to learning more about the subject.

 
[Eugene Volokh, 4:14 PM]
WAS THE FBI STYMIED BY ANTI-RACIAL-PROFILING SENTIMENT? As I've mentioned before, I think there are powerful arguments both for and against racial profiling, even in the antiterrorism context; I am genuinely unsure of the right result. But Stuart Taylor -- an extremely thoughtful, moderate, and respected writer for the well-regarded National Journal -- makes a strong case that the FBI's failures before 9/11 were partly (and of course only partly) caused by the anti-racial-profiling sentiment that was then so politically powerful.

     This is a very important article, which is likely to get a good deal of attention. Much worth reading.

 
[Eugene Volokh, 4:02 PM]
RECOMMENDATIONS FOR HIT COUNTERS, preferably free but possibly a modestly-priced for-pay one? I've had glitches both with beseen.com, and the current one, gostats.com, and I'm looking for something more robust. I'd like something that can give me statistics for the last several days and for the last 24 hours; I'd also prefer something that can show me both the most recent few visits, including referrer pages, and (more rare, in my limited searches) the total referrer counts over the last several days.

     I might eventually move off blogspot and have the page be hosted by the UCLA Law Library, if they'll be so kind, and this might solve my problem (or create new ones!). But in the meantime, I'd like a slightly more robust counter of my own.

     If anyone has any high recommendations, please e-mail me, at volokh at law.ucla.edu. Thanks!